Long v. Branham

• Decision Date: 23 January 1907
• Citation: 99 S.W. 271
• Parties: LONG ET UX. v. BRANHAM.
• Court: Kentucky Court of Appeals

99 S.W. 271

LONG ET UX. v. BRANHAM.

Court of Appeals of Kentucky.

January 23, 1907

Appeal from Circuit Court, Cumberland County.

"Not to be officially reported."

Action by Milton Branham against G. W. Long and wife. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Sandidge & Sandidge, for appellants.

Baird &amp Richardson, Allen & Ewing, and J. C. Carter, for appellee.

SETTLE J.

This is an appeal from a judgment of the Cumberland circuit court enforcing a mortgage lien upon 80 acres of land owned by the appellant G. W. Long, to pay a debt of $292.50, exclusive of interest and cost, due appellee, Milton Branham.

It appears from the record that G. W. Long became the statutory guardian of his infant nieces Nellie A. and Julia Long October 1, 1898, by appointment of the Cumberland county court, and that he then gave bonds and duly qualified as such guardian. Appellee, Milton Branham, signed the two bonds as his surety, and they were thereupon accepted by the county court. In 1901, the infants named, with the consent of their guardian, removed to and became residents of Fannin county Tex. Thereafter James Long, also a kinsman of the infants, Nellie A. and Julia Long, was, by an order of the probate court of Fannin county, Tex., appointed and permitted to qualify as their guardian. Following his appointment and qualification as such guardian, James Long procured of the county court of Cumberland county, Ky. an order authorizing him to collect, sue for, recover, and remove to the state of Texas, all of the personal estate of his wards. Thereupon appellant G. W. Long settled his accounts as guardian of Nellie A. and Julia Long with the judge of the Cumberland county court, by which settlements it was ascertained that he owed each of his wards the sum of $121.34. But he failed to pay these sums, or any part thereof, to the Texas guardian, though ordered by the Cumberland county court to do so, and the latter then brought suits in the circuit court of Cumberland county upon his bonds as guardian, for the purpose of recovering of him, and appellee as his surety, the sums due the infant wards respectively, and judgments were duly rendered thereon, as demanded. At the time of the rendition of these judgments, the appellant G. W. Long was insolvent, and, when executions were issued thereon and placed in the hands of the sheriff, their payment was assumed by appellee upon the promise of appellant G. W. Long that he and his wife, Elzada Long, would execute to him a mortgage upon the 80 acres of land in question as security for the repayment to him of whatever sum he might be compelled to pay in satisfaction of the judgments in favor of James Long, guardian of Nellie A. and Julia Long. Pursuant to this agreement the mortgage was executed, and shortly thereafter appellee paid the judgments in full as he had agreed to do.

In the case at bar, appellants resisted the enforcement of appellee's mortgage lien, upon the grounds, as set forth in the separate answers, that the appellant Elzada Long's signature to the mortgage and her acknowledgment thereof were obtained by fraud and duress, and that, if the mortgage is not invalid by reason thereof, it was in any event made so by the further alleged fact that the certificate of the deputy clerk as to her acknowledgment of the instrument shows that she joined in the mortgage for the sole purpose of relinquishing her potential right of dower in the land. Consequently it did not deprive her, or her husband, of a homestead therein. The answers were controverted by reply. Appellants both testified, though only one of them was entitled to do so--the right of election resting with them--but, appellee having failed to file exceptions to their depositions, or either of them, no reason exists for the rejection of neither by this court. According to appellants' testimony, appellee and W. S. McFarland, the deputy county court clerk, came to their house in the afternoon of the day the mortgage was executed; one of them carrying a double-barrel shotgun and the other saddlebags. That the mortgage was written by McFarland at their house, after a conversation between appellee and G. W. Long about it. That it was signed and acknowledged by the latter, and immediately thereafter he went out into the yard where his wife was for the purpose, as he claimed, of requesting her to sign and acknowledge it, which she, at the time, refused to do, saying her father had advised her not to do so, whereupon her husband told her if she loved her father better than she loved him to take the latter's advice. That the wife then returned to the house weeping, and being approached in the kitchen, or between the two rooms of the house, by the deputy clerk with an explanation of the mortgage and the request that she sign it, she informed him that she would not do so, but that about that time she saw appellee walk into and through the front room of the house with the saddlebags in his hand, and heard him say, "My God, I have got to have it," and, fearing that he would inflict some injury upon her husband if she did not join him in executing the mortgage, she did then make her mark to and acknowledge it, through fear and under duress. Appellants also testified that they were not more than four feet apart when the wife made her mark to and acknowledged the mortgage, though neither denied that he was in the front room and she outside of it, at the time, or that the deputy clerk did not attempt to take her acknowledgment separate and apart from her husband In addition to the foregoing, the appellant G. W. Long testified that one Lee Hughes had told him of appellee's threatening him with personal violence in the event that he and his wife failed to execute the mortgage. Appellant's version of the transaction in question was uncorroborated by any other witness, not even by Hughes, as to the alleged threats of appellee, and, although Hughes lived near appellants, and it appears from the record that his deposition could have been readily obtained, they did not attempt or offer to take it. Appellee and McFarland, the deputy clerk, gave a totally different account from that of appellants of what took place at the time of the execution of the mortgage. According to the testimony of the former, the appellant G. W. Long, only a day or two before, voluntarily promised appellee in the presence of Sheriff Norris, who then had the execution against them, that, if he would satisfy the execution, he (appellant) would, together with his wife, give the mortgage on his land, and, if he failed to repay appellee the amount of the two executions within 12 months, would convey him the land by deed. This was admitted by appellant.

Both appellee and McFarland testified that they went to appellant's residence to obtain the promised mortgage the latter, at appellee's request, to write the mortgage, and, as a deputy of the clerk of the Cumberland county court, to take the acknowledgment of the mortgagors to the instrument after it was written. That on the way to appellant's home they stopped at a store where McFarland purchased a single-barrel shotgun, which he carried to appellant's residence unloaded, and upon their arrival there it was taken in hand by a son of appellants, and was not again in the hands of the owner until he and appellee took their departure for their own homes. They also testified that the saddlebags were the property of McFarland, used for carrying his form book, paper, and writing material, and t...